Du Plessis v Hyde Park Auto (Pty) Limited t/a Sandton Auto BMW obo BMW Melrose Arch and Another (NCT/133242/2019/149(1)) [2019] ZANCT 153 (22 October 2019)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD AT CENTURION

Case number: NCT/133242/2019/149(1)

In the matter between:

RIANA DU PLESSIS APPLICANT

and

HYDE PARK AUTO (PTY) LIMITED t/a SANDTON AUTO BMW 1st RESPONDENT

o.bo. BMW MELROSE ARCH

BMW FINANCIAL SERVICES (South Africa)(Pty) LIMITED 2nd RESPONDENT

Coram:

Prof Bonke Dumisa – Presiding member

Prof Tanya Woker – Tribunal member

Dr Laura Best – Tribunal member

Date of Hearing: 17 September 2019

Date of Judgment: 22 October 2019

JUDGEMENT

APPLICANT

1. The applicant is RIANA DU PLESSIS, an adult female consumer, who resides at 310 Glenwood Park, 74 Ikey Road, Lynwood, Pretoria, in the Gauteng Province. The Applicant appeared in person at the hearing of this application.

RESPONDENTS

2. There are two respondents:

2.1 The First Respondent is HYDE PARK AUTO (PTY) LIMITED t/a SANDTON AUTO BMW, on behalf of BMW Melrose Arch, operating from 126 Rivonia Road, Sandton, in the Gauteng Province. The First Respondent was not represented at the hearing of this application; and

2.2 The Second Respondent is BMW FINANCIAL SERVICES (South Africa) PTY LIMITED, whose physical address is 1 Bavaria Road, Midrand, in the Gauteng Province. The Second Respondent was represented by Ms Kim Van Meulen, of Smit Jones & Pratt Attorneys, at the hearing of this matter.

APPLICATION TYPE AND ORDER SOUGHT

3. This is an application for interim relief in terms of section 149 of the National Credit Act, 2005 (the NCA) in which the applicant seeks an order compelling the respondents to stop making debit order deductions from her bank account(s) for amounts in dispute. Section 149 empowers the Tribunal to consider applications by complainants for interim relief.

4. The Second Respondent opposes the relief sought by the Applicant on the grounds that the applicant is incorrectly seeking redress against the wrong party; and that the Second Respondent has nothing to do with the Applicant’s claim.

MATTERS TO BE DECIDED

5. The Tribunal will have to decide whether or not to grant the interim relief as applied for by the Applicant.

6. The Tribunal has to decide whether the Second Respondent is the correct party to provide the legal redress and remedy as applied for by the Applicant.

BACKGROUND

7. The Applicant has opted to focus on trying to get redress specifically from the Second Respondent, despite also citing the BMW

dealership as the First Respondent.

8. The Second Respondent says the Tribunal must dismiss the application on the grounds that it has nothing to do with the Applicant’s

need for redress. The problems which the Applicant has cited and which have led to this dispute arise from her dealings with the First Respondent and not with her dealings with the Second Respondent.

SUBMISSIONS BY THE APPLICANT

9. The Applicant seeks an order compelling the Second Respondent to stop making debit order deductions from the Applicant’s bank account, on the following grounds:

9.1. The Applicant alleges that the Second Respondent overcharged her an amount of R157 249.99 in respect of 4 extra items loaded onto her invoice by the First Respondent, allegedly made to appear as part of the base price of the vehicle;

9.2. The Applicant alleges that the First and Second Respondents incorrectly included an amount of R3000 for on the road fees which were included on the invoice; and

9.3. The Applicant also alleges that the Second Respondent miscalculated the total amounts due, partly because the Second Respondent allegedly failed to calculate the reduction of the capital and interest payable to cater for advanced payments made by the Applicant to the Second Respondent.

SUBMISSIONS BY THE SECOND RESPONDENT

10. The Second Respondent wants the Applicant’s application to be dismissed in terms of Section 149(1); and that this application must be dismissed with costs; the Applicant must pay the Second Respondent’s costs on the scale as between attorney and client.

11. The Second Respondent’s position is that it simply provided finance for a contract that was fully concluded between the Applicant and the First Respondent; and that it cannot be held accountable for what may have gone wrong between the Applicant and the First Respondent:

11.1 The Second Respondent denies that it overcharged the Applicant an amount of R157 249.99 in the instalment agreement, purportedly for 4 extras that the Applicant did not even know about;

11.2 The Second Respondent denies it charged the Applicant an on the road cost;

11.3 The Second Respondent denies it miscalculated the interest and capital amount owing on the instalment sale agreement; and

11.4 The Second Respondent also submits that the Applicant’s matter has already been dismissed by the National Credit Regulator, who determined that value of the purchase price as well as the costs for extras on the vehicle in respect of the agreement with the First Respondent did not fall within the ambit of the NCA; and hence the Regulator has no regulatory authority.

THE PROCEEDINGS AT THE HEARING

12. At the hearing, both the Applicant and the legal representative for the Second Respondent simply repeated what was already fully covered by their earlier written submissions.

13. The Second Respondent made submissions that, where the Applicant made advanced payments, such advanced payments were factored in the capitalisation of amounts which resulted in the term of the instalment agreement being reduced.

CONCLUSIONS

14. It is clear from the sales agreement signed between the Applicant and the First Respondent that all the items and terms included in the agreement were fully discussed and concluded between these parties, and not with the Second Respondent.

15. The Tribunal accepts that the finance agreement the Applicant signed with the Second Respondent is based on the invoice price as presented by the First Respondent; any disputes emanating from the line items on that invoice must be dealt with between the Applicant and the First Respondent; the Second Respondent had nothing to do with those line items.

16. In the circumstances; the Applicant’s dispute must be raised with the First Respondent.

17. The Tribunal has no powers to order that the Applicant be allowed to stop paying the instalments for the loan which the Second Respondent advanced to the Applicant in order to purchase the vehicle.

TRIBUNAL ORDER

18. Accordingly, the Tribunal rules:

18.1. This application is dismissed; and

18.2. There is no order as to costs.

DATED AT CENTURION ON THIS 22nd DAY OF OCTOBER 2019

_______________

Prof BONKE DUMISA

Tribunal member

With Prof Tanya Woker and Dr Laura Best concurring.